Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA074132, Robert Martinez, Judge.
Judith Vitek, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EPSTEIN, P. J.
Michael Nevarez appeals from judgment entered following a jury trial in which he was convicted of possession of a firearm by a felon, count 1 (Pen. Code, § 12021, subd. (a)(1)) and disobeying a domestic relations court order, a misdemeanor, count 3 (Pen. Code, § 273.6, subd. (a)). The jury additionally found appellant had suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and suffered two prior convictions and served prison terms within the meaning of Penal Code section 667.5, subdivision (b). He was sentenced to prison for a total of five years, consisting of the middle term of two years doubled pursuant to the Three Strikes law, plus one year for the prior prison term enhancement.
The jury found appellant not guilty of corporal injury to a spouse/cohabitant/child’s parent (Pen. Code, § 273.5, subd. (a)). Appellant declined to have the trial of prior felony convictions alleged pursuant to Penal Code sections 667.5, subdivision (b), 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i) bifurcated.
Appellant was sentenced to six months concurrent for the misdemeanor conviction.
On May 8, 2006, appellant’s motion to represent himself was granted. Appellant’s motion to continue the trial was denied and his motion pursuant to Code of Civil Procedure 170.6, claiming the judge was biased, was denied as untimely. On the same date, the court revisited the Marsden motion, stating the court by implication had denied it by allowing appellant to represent himself. After further discussion, the court granted appellant’s Marsden motion and appointed the alternate public defender’s office. Appellant revoked his request to represent himself.
People v. Marsden (1970) 2 Cal.3d 118.
On the next day, the court indicated upon further reflection it believed it had erroneously granted the Marsden motion and vacated its order of the previous day. The court indicated, however, since it already had relieved counsel and substituted new counsel, the substitution would stand unless the office of the public defender or the office of the alternate defense counsel objected.
On May 11, 2006, appellant’s motion to proceed in propria persona was granted, and the alternate public defender was relieved as counsel of record. Appellant’s request for co-counsel was denied. Appellant’s motions for a legal runner, jury consultant and an investigator were not entertained by the court, and appellant was advised that his motions were to be in writing and filed with the court. Further proceedings were set for May 15, 2006, for the filing of motions. Appellant was allotted $40 in pro. per. funds.
On May 15, 2006, appellant’s motion to appoint private investigator Lawrence Sanchez was denied. Investigator Lawrence De Losh was appointed and a legal runner was appointed. The matter was continued for further proceedings relative to discovery. Appellant’s motion for additional pro. per. funds was denied.
On June 30, 2006, appellant’s motion for additional pro. per. funds was granted in the amount of $40. His motion for copies of transcripts and minute orders was denied. His Pitchess motion was granted in part regarding complaints during the last five years against Deputy Rice for falsification of police reports. The court found the motion partially well taken because appellant was disputing a statement in the police report written by Deputy Rice. Deputy Rice wrote that when he asked appellant “where he got the shotgun[,]” appellant stated “his mother’s boyfriend gave it to him.” Appellant claimed he did not make that statement.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
On July 5, 2006, the trial court conducted an in camera hearing, reviewed Deputy Rice’s personnel records and concluded there were no documents responsive to the Pitchess request. On that same date, the court found that appellant had been contacting the victim, which was a violation of the protective order signed by Judge Lopez and filed on February 26, 2006. Appellant’s motion pursuant to Code of Civil Procedure section 170.6 was considered timely and the matter was transferred to the master calendar where it was then transferred for trial.
On the same date, appellant’s Romero motion was denied. His motion to suppress evidence pursuant to Penal Code section 1538.5 was heard and denied. Jury selection commenced.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Appellant argued that his strike was from a 1993 residential burglary, during which no one was present. He claimed that when he pled to the crime he was not advised it could be used in the future as a strike. Appellant also claimed that in 2003 he was placed on probation on a stalking charge and the court struck his prior conviction in the interest of justice. The court did not inform him that the prior conviction could be used against him in the future. Appellant also argued the prior strike was remote in time.
On July 6, 2006, appellant’s investigator was present in court and conferred with appellant. Out of the presence of the prosecution, the trial court inquired regarding the availability of defense witnesses. Appellant’s investigator stated he would continue his investigation pursuant to appellant’s request and prepare a written report of his investigative services. Jury selection continued and the jury and alternates were accepted by both parties.
The court accepted for filing appellant’s writs of mandate/prohibition relative to the court’s denial of his motion to strike a prior pursuant to Penal Code section 1385 and relative to the court’s denial of his suppression motion. The court denied without prejudice appellant’s written request for transcripts of the motion to strike, stating the relevance of those proceedings was contingent upon a guilty verdict. If appellant was found guilty, the court would prepare an order for transcripts of the motion. Appellant’s request for transcripts of his suppression motion was granted.
Appellant’s objection to jurors “with close ties to law enforcement” was overruled. The court advised the jury that there were priors alleged; it did so because appellant had not admitted them or stipulated to them, nor had he bifurcated them. Appellant’s motion for mistrial was denied.
The evidence at trial establishes that on February 17, 2006, appellant and his wife Tina Nevarez were living in a room at Brown’s Motel on Valley Boulevard in the County of Los Angeles. Appellant usually slept on the left side of the bed, closest to the bathroom and kept his belongings on that side. No one else was allowed on his side of the bed. Appellant’s side of the bed was higher, and he did not allow maids to clean the room or change the sheets. Appellant and Ms. Nevarez argued most of the day and at approximately 8:30 p.m., their argument escalated. Appellant “called [her] names,” grabbed her wrists and arms and pushed her to the wall. Appellant hit her in the face near her eye and kicked her in the side. She sustained bruises on both arms, the side of her stomach and the side of her face was swollen. She claimed she had not received any of the bruises before February 17. Ms. Nevarez left the motel room when appellant answered his phone and went to a pay phone and called her mother and the police. When the police met her at a Burger King restaurant, she told them her husband had hit her and he was probably still in the motel room. When they asked her if he had any weapons or anything illegal, she said, “‘No, not that I know of.’ Because if he did have anything illegal there, [she] would leave.” She gave the officers permission to search the room.
Deputy Sheriff Joshua Rice searched the motel room and found a shotgun under the mattress with 10 shotgun slugs next to it. The gun was found on the side of the bed nearest the bathroom. Following waiver of his Miranda rights, appellant told Deputy Rice he had gotten the shotgun from his mother’s boyfriend.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant had already been arrested when Deputy Rice conducted the search and the interview occurred in jail.
A protective order was issued on February 22, 2006, directing that appellant have no contact with Ms. Nevarez. Nevertheless, appellant called Ms. Nevarez on her cell phone June 22nd or 23rd. Ms. Nevarez said appellant had made “calls and calls.” She has “caller I.D.” on her phone and he is the only person she knows from the 213 area code. She also received messages from appellant through other people saying that she should not testify against him.
At the time of trial, Ms. Nevarez was living with her grandmother Jessie Lopez. After February, Ms. Lopez began receiving phone calls to her residence from “state prison.” Appellant is the only one she knows who is in prison. Ms. Lopez received these calls for approximately three months and documented them. The Caller I.D. stated the calls were from “prison.” She listed the dates of the phone calls. Sometimes Ms. Lopez or her husband would pick up the phone and then hang up.
Appellant’s motion for a mistrial because the jury learned he was in custody was denied.
William Leo, a forensic identification specialist assigned to the crime lab of the Los Angeles County Sheriff’s Department, rolled fingerprints of appellant and compared them to fingerprints in the prison packet in case number KA019262. He determined the fingerprints were made by the same person. A paralegal with the district attorney’s office testified that based on appellant’s prison packets, appellant had had been convicted on October 8, 1993 in case number KA019262 of first degree burglary, on March 5, 1996 in case number KA030814, of second degree burglary and gone to prison for this conviction. He also had been convicted on May 9, 2003 in case number FRE06013, for stalking.
Appellant was paroled March 18, 1998. He was then returned to custody and paroled again five times through August 18, 2002.
In defense, appellant’s aunt, Gina Yount, testified that she was in the motel room shortly before appellant was arrested and Ms. Nevarez had old bruises. Ms. Nevarez had her own cell phone and could use it and was free to go to either side of the bed. Ms. Yount was impeached with a misdemeanor forgery conviction.
Karla Silva testified that Ms. Nevarez saw her in the corridor the previous day, called her names and said, “‘Ha, ha, he is going to be convicted.’ I can’t have him. You can’t have him. He’s going to be in prison.’” Ms. Nevarez told her she had lied under oath about appellant hitting her and that she and appellant were going to work things out. Ms. Silva has dated appellant off and on for the past six years and was acting as his legal runner.
Appellant testified that three days before the incident he had gotten into an argument with his wife. She started throwing things and appellant held her down to keep her from breaking things. He admitted his prior convictions for burglary and stalking but denied knowing the shotgun was inside the motel room. He denied he told Deputy Rice the shotgun was his. He admitted making phone calls to his wife’s family but did so at the suggestion of a judge in order to get a divorce. Appellant stayed with his wife in the room from approximately January 20, 2006 until the beginning of February; then he began spending nights at an RV that his mother had purchased.
Elizabeth Nevarez, appellant’s mother, testified her boyfriend had a rifle, but it disappeared from her motor home. When appellant started staying in the motor home, the rifle already had disappeared. Elizabeth Nevarez speculated that appellant’s wife had taken the rifle or that “Rudy” had moved it.
Immediately following the jury’s verdicts, appellant stated he wished to file a motion for new trial based on newly discovered evidence. He said that he had learned over the weekend “who actually took the shotgun.” The court continued the matter for two weeks for further proceedings and sentencing and ordered any motion be filed no later than July 21, 2006, five days before the hearing. Forty dollars in additional pro. per. funds was authorized. In light of the guilty verdict, the court stated it would revisit the motion to strike appellant’s prior conviction.
Thereafter, at appellant’s request, the court gave appellant until July 26, 2006 to file his motion. Appellant stated his mother’s boyfriend’s friend would testify he went to the motel room and saw Tina Nevarez with the weapon. Appellant stated his runner would obtain the necessary affidavit.
On July 26, 2006, appellant stated he had not been able to complete his motion. He claimed county jail continued to be in lockdown and “pro pers” were being moved to a new location. His legal runner was presently trying to obtain the affidavit. Appellant’s investigator, Mr. De Losh, stated he interviewed appellant at county jail and appellant asked him “to do certain things and not to do it until after 12:00 yesterday.” At 12:20, Mr. De Losh attempted to contact the witness, calling 15 times and leaving several messages. He also went to the address, but people there were uncooperative, saying the witnesses did not live there. He contacted the legal runner to find out how to reach the witnesses. Mr. De Losh stated he was instructed to delay trying to contact these people, because a “portion of the county jail is on lockdown and, evidently, [appellant] cannot get to telephones and he had to call and pave the way for the people to talk to [him].”
While Mr. De Losh referred to both a single “witness” and “witnesses” it appears appellant was attempting to get a statement from a single witness.
In response to the court’s inquiry, appellant said the witness was his mother’s boyfriend’s friend. He “barely found out that [his mother’s] boyfriend owned the shotgun.” After his mother’s boyfriend’s friend “found out that [appellant] was going to be facing time then he came forward, and he told [appellant’s] mom that he had been seeing Tina [having relations with her] and that he’s seen Tina inside the room with a shotgun. She had been confiding in him.” When asked about the statement by Deputy Rice attributed to appellant, appellant speculated the officer believed appellant “was beating up on [his wife].” Appellant speculated his wife had informed the officer that her boyfriend brought the shotgun in and gave the wrong name.
In denying the motion for new trial, the court stated it was ruling on the motion as if appellant had presented the affidavit in court. It concluded, however, that this new evidence would not make any difference in the verdict. Even disregarding the testimony of appellant’s wife, the court said there still was a gun in appellant’s motel room and the officer testified appellant admitted he obtained it from his mother’s boyfriend. Further, the court noted, appellant’s mother testified she recognized the rifle and that the last time she had seen it was in the motor home where appellant was living during that period of time.
Relative to the prior conviction for stalking, appellant argued transcripts of the San Bernardino case did not indicate he had waived his rights when he pled to the charge. The trial court told appellant not to “worry about it because [the court] was going to strike that.”
Appellant’s renewed Romero motion was denied.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On February 2, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
On March 8, 2007, he filed a supplemental brief. Appellant argued the court’s stated reason for denying the motion for new trial contradicted an instruction given to the jury. The court’s conclusion that based on the presence of the shotgun in appellant’s motel room and the testimony of Deputy Rice, appellant would still have been convicted of the charge, violated the instruction that one could not be convicted of a crime based on out of court statement alone. Appellant additionally believed the verdict would have been different if the jury had heard the new evidence. These claims are without merit. The trial court’s statement that a conviction based on the presence of the weapon in the motel room and Deputy Rice’s testimony of appellant’s admission did not violate the corpus delicti rule. The presence of the weapon in appellant’s motel room and appellant’s mother’s testimony regarding the weapon was other independent evidence of the crime. (See People v. Ray (1996) 13 Cal.4th 313, 342.) Nor did the trial court abuse its discretion in refusing to grant a new trial based on newly discovered evidence. (See People v. Shoals (1992) 8 Cal.App.4th 475, 486.)
Appellant also erroneously claimed his sentence was unlawful because, when sentenced for stalking in 2003, the court had placed him on probation and struck his 1993 conviction from his record so that it could not be used as a strike against him in the future. When a trial court strikes a prior felony conviction “it ‘“does not wipe out such prior convictions or prevent them from being considered in connection with later convictions.”’ [Citation.]” (People v. Superior Court (Romero), supra, 13 Cal.4th 497, 508.)
Appellant also claimed that since there was no victim in this case and because he represented himself, he should not have to pay a restitution order pursuant to Penal Code section 1202.4, subdivision (b). Appellant is in error. Penal Code section 1202.4, subdivision (b) encompasses “every case where a person is convicted of a crime.” The assessment of a restitution fine under this code section is not related to whether there is a direct victim. (See People v. Miller (1989) 216 Cal.App.3d 758, 761.)
Appellant further argued that on May 8, 2006, the court granted his Marsden motion to relieve the public defender’s office as his attorney. But the next day, May 9, the court concluded its grant of this motion was in error. It then vacated the order granting the motion and made a new order denying the Marsden motion. Appellant claims the defense was never notified that the motion was reversed and if he had been informed, he “most certainly would have given up his pro-per status and asked the court for a licensed attorney . . . But since the court never informed [appellant], the defense never knew it may have made the mistake in remaining pro-per.” The record, however, reflects that upon vacating its order of May 8 and denying appellant’s Marsden motion, the court let stand the order appointing the office of the alternate public defender in place of the public defender and appellant was being represented by a “licensed attorney.”
Appellant also argued that, since he was found not guilty of the charge for which the police officers responded (corporal injury to a spouse), was rushed into trial, not allowed to have the jury deliberate on the newly discovered evidence, and that anyone could have possessed that weapon, the sentence was cruel and unusual. He reiterated his claim that he did not know there was a weapon in the motel room.
Contrary to appellant’s claim, he has not established his punishment was cruel and/or unusual. (See Ewing v. California (2003) 538 U.S 11; Lockyer v. Andrade (2003) 538 U.S. 63; People v. Romero (2002) 99 Cal.App.4th 1418, 1431-1432.) Appellant was not sentenced on the crime for which he was acquitted and there is no evidence in the record that he was rushed into trial. Nor did the trial court abuse its discretion in denying appellant’s motion for new trial based on newly discovered evidence. While appellant claims he is innocent of the crime, the trier of fact found otherwise. “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence--that is, evidence that is reasonable, credible, and of solid value--such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] . . . The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citations.]”’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, J. MANELLA, J.
In opposition, the prosecution argued appellant also had suffered a second degree residential burglary conviction in 1996 and a stalking conviction in 2003, had not remained free since the strike, and continues to defy court orders. Appellant presently was facing charges for being a felon in possession of a firearm and domestic violence, and was currently on parole.